Citation Nr: 0621370
Decision Date: 07/20/06 Archive Date: 08/02/06
DOCKET NO. 05-06 178 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an increased evaluation for an anxiety
reaction (formerly evaluated as neurasthenia), currently
rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran served on active military duty from August 1943
to October 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2004 rating action of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee.
FINDINGS OF FACT
1. The VA has fulfilled its notice and duty to assist to the
appellant by obtaining and fully developing all relevant
evidence necessary for the equitable disposition of the issue
addressed in this decision.
2. The veteran's service-connected anxiety reaction is
manifested by occasional depression with anxiety, nightmares,
irritability, and sleeplessness and a Global Assessment of
Functioning (GAF) score of 70.
CONCLUSION OF LAW
The criteria for an initial disability evaluation in excess
of 10 percent for an anxiety reaction, formerly evaluated as
neurasthenia, have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.321, 4.1- 4.14,
4.104, Diagnostic Code 9400 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F. 3d 1328 (Fed. Cir. 2006).
VA satisfied its duty to notify by means of a December 2003
letter from the agency of original jurisdiction (AOJ) to the
appellant that was issued prior to the initial AOJ decision.
The letter informed the appellant of what evidence was
required to substantiate the claims and of his, and VA's
respective duties for obtaining evidence. The appellant was
also asked to submit evidence and/or information in his
possession to the AOJ.
The Board further observes that the appellant was notified of
the information necessary to substantiate his claim by means
of the discussions in the original rating decision and the
statement of the case (SOC). In each instance, the VA has
discussed what the appellant needed to present in the form of
evidence that would allow for him to succeed with his appeal.
VA has informed the appellant of which evidence he was to
provide to VA and which evidence VA would attempt to obtain
on his behalf. In this regard, the VA sent the appellant
notice of the VCAA, which spelled out the requirements of the
VCAA and what the VA would do to assist the appellant. The
VA informed the appellant that it would request records and
other evidence, but that it was the appellant's
responsibility to ensure that the VA received the records.
The appellant was told that he should inform the VA of any
additional records or evidence necessary for his claim. The
veteran did inform the VA of the location of his treating
physicians and those records have been obtained and included
in the claims folder for review. Given the foregoing, the
Board finds that the RO has substantially complied with the
duty to procure the necessary medical and personnel records.
Additionally, VA has a duty to obtain a medical examination
or opinion when such examination or opinion is necessary to
make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West
2002 & Supp. 2005). The record reflects that as a result of
the veteran's claim, he underwent a VA psychiatric
examination in January 2004 - prior to the determination that
the veteran has appealed. The examination results have been
included in the claims folder.
Moreover, the appellant was given the opportunity to present
evidence and testimony before an RO hearing officer and the
Board. Additionally, the appellant was given notice that the
VA would help him obtain evidence but that it was up to the
appellant to inform the VA of that evidence. During the
course of this appeal, the appellant and his representative
have proffered documents and statements in support of the
appellant's claim. It seems clear that the VA has given the
appellant every opportunity to express his opinions with
respect to the issue now before the Board and the VA has
obtained all known documents that would substantiate the
appellant's assertions.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, slip op. at 14. Additionally, this notice
must include notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. Id.
Here the veteran was provided with notice of what type of
information and evidence was needed to substantiate his claim
for an increased evaluation, but he was not provided with
notice of the type of evidence necessary to establish an
effective date for the disability on appeal. Despite the
inadequate notice provided to the veteran on this element,
the Board finds no prejudice to the veteran in proceeding
with the issuance of a final decision. See Bernard v. Brown,
4 Vet. App. 384, 394 (1993) (where the Board addresses a
question that has not been addressed by the agency of
original jurisdiction, the Board must consider whether the
veteran has been prejudiced thereby). In that regard, as the
Board concludes below that the preponderance of the evidence
is against the appellant's claim, any questions as to the
effective date to be assigned are rendered moot.
In this case, because each of the four content requirements
of a VCAA notice has been fully satisfied, any error in not
providing a single notice to the appellant covering all
content requirements is harmless error. Here, the appellant
is not prejudiced by the Board's consideration of his claim
as VA has already met all notice and duty to assist
obligations to the appellant under the VCAA. In essence, the
appellant in this case has been notified as to the laws and
regulations governing increased evaluation claims. He has
been advised of the evidence considered in connection with
his appeal and what information VA and the appellant would
provide. He has been told what the VA would do to assist him
with his claim and the VA has obtained all documents it has
notice thereof that would assist in the adjudication of the
appellant's claim. Thus, the Board finds that there has been
no prejudice to the appellant that would warrant further
notification or development. As such, the appellant's
procedural rights have not been abridged, and the Board will
proceed with appellate review. Bernard, 4 Vet. App. at 393.
Disability evaluations are determined by the application of a
schedule of ratings that is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R., Part 4 (2005). Separate diagnostic codes identify
the various disabilities. 38 C.F.R. § 4.1 (2005) requires
that each disability be viewed in relation to its history and
that there be emphasis upon the limitation of activity
imposed by the disabling condition. 38 C.F.R. § 4.2 (2005)
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran working or
seeking work. 38 C.F.R. § 4.7 (2005) provides that, where
there is a question as to which of two disability evaluations
shall be applied, the higher evaluation is to be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating is to
be assigned.
The regulations do not give past medical reports precedence
over current findings. Francisco v. Brown, 7 Vet. App. 55,
58 (1994). While the evaluation of a service-connected
disability requires a review of the appellant's medical
history with regard to that disorder, the United States Court
of Appeals for Veterans Claims (Court), has held that, where
entitlement to compensation has already been established, and
an increase in the disability rating is at issue, the present
level of disability is of primary concern. Id.; Peyton v.
Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2
(2005). With respect to the issue before the Board, the
appeal does not stem from the veteran's disagreement with an
evaluation assigned in connection with the original grant of
service connection, and the potential for the assignment of
separate, or "staged" ratings for separate periods of time,
based on the facts found, are not for consideration.
Fenderson v. West, 12 Vet. App. 119 (1999).
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
veteran's ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10 (2005).
The record reflects that service connection for a psychiatric
disorder was granted by the RO in a rating decision issued in
December 1945. Service connection was granted for a
psychoneurosis - neurasthenia. The RO assigned a disability
evaluation of 10 percent. Fifty-eight years later, the
veteran submitted a claim for an increased evaluation,
claiming that his mental disorder was more disabling.
Following his submission, the veteran underwent a VA
psychiatric examination in January 2004. In that
examination, the assigned Global Assessment of Functioning
(GAF) score was 70 for an anxiety disorder not otherwise
specified. The examiner classified the veteran's disorder as
"mild" and that the veteran was generally functioning
"pretty well and with meaningful interpersonal
relationships". The examiner noted that the veteran was
experiencing additional stress along with restlessness and
depression but that these symptoms were due to the veteran's
wife's health problems and not due to the veteran's service-
connected psychiatric disorder. The veteran admitted that he
had retired from his job because of his age and not because
of any physical or psychological condition. He further told
the examiner that he continued to have good relationships
with his family, that he attended church, and that he
remained active in the community. The examiner found that
the veteran was not clinically depressed nor was he
delusional. While the veteran was somewhat circumstantial,
the examiner found that the veteran had a good memory, his
insight remained fair, and his judgment was adequate. The
veteran admitted that he had never received psychiatric
counseling or medications for his mental disorder and that he
did not believe such counseling or medications were required.
Treatment records from the veteran's private health care
providers were obtained. These records were silent as to any
type of symptoms and manifestations manifested by the
veteran's anxiety reaction.
Nevertheless, the veteran has claimed that he suffers from
depression and anxiety. He also says that he experiences
sleeplessness and restlessness.
The veteran's disability has been rated pursuant to 38 C.F.R.
Part 4, Diagnostic Code 9400 (2005). The regulations at 38
C.F.R. § 4.130 (2005) establish a general rating formula for
mental disorders. The formula assesses disability according
to the manifestation of particular symptoms, providing
objective criteria for assigning a disability evaluation.
Under the criteria, a 10 percent disability rating is
warranted for occupational and social impairment due to mild
or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress, or symptoms controlled by continuous
medication.
A 30 percent disability rating is warranted for occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, or recent events).
A 50 percent rating is warranted for occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
The next higher rating, a 70 percent rating, may be assigned
for occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); inability to establish and
maintain effective relationships.
The highest, or 100 percent schedular evaluation,
contemplates total occupational and social impairment, due to
such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name. 38
C.F.R. Part 4, Diagnostic Code 9400 (2005).
In determining whether an increased evaluation is warranted,
the VA must determine whether the evidence supports the claim
or is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case an increased rating must be
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The medical evidence shows assignment of GAF score of 70. A
GAF score of 61 to 70 contemplates some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal
relationships. A GAF Score of 51 to 60 contemplates moderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers). See DSM-IV at 44-47. A
GAF score is highly probative as it relates directly to the
veteran's level of impairment of social and industrial
adaptability, as contemplated by the rating criteria for
mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207
(1994).
In evaluating the veteran's disability, the Board is mindful
that when it is not possible to separate the effects of the
service-connected condition from a non-service connected
condition, 38 C.F.R. § 3.102 (2005), which requires that
reasonable doubt be resolved in the veteran's favor, dictates
that such signs and symptoms be attributed to the service-
connected condition. See Mittleider v. West, 11 Vet. App.
181 (1998). In Mittleider, the veteran had been diagnosed
with PTSD and various personality disorders and there was no
medical evidence in the record separating the effects of the
service-connected disability from the nonservice-connected
disorders. Id. at 182. The Board finds this case
distinguishable from Mittleider in that there is no medical
evidence of record indicating or suggesting that the veteran
suffers from any other psychiatric disorder.
Upon reviewing the record, it is the conclusion of the Board
that the evidence does not support an evaluation in excess of
10 percent for an anxiety reaction. The lone VA examination
has noted occasional depression and mild anxiety. However,
the veteran has continued to have social relations with
family members, he has volunteered in the community, and the
examiner concluded that the veteran was unable to work as a
result of his age, not his anxiety reaction. Although the
veteran has complained of restlessness, remorse, nightmares,
and irritability, over the course of the appeal, these same
symptoms have not been found upon examination. Moreover,
none of the complained of symptoms have manifested themselves
to such a degree that would cause the veteran's private
physicians to note those symptoms.
With respect to any industrial impairment from which the
veteran may experience, the medical evidence is conclusive.
The veteran has been capable of employment and his employment
has not been affected by his psychiatric disability. In
fact, the veteran has admitted that when he was working, his
psychiatric disorder had no effect on his ability to perform
his work duties. Moreover, no medical evidence has been
presented that insinuates that the veteran is unable to work
as a result of his anxiety disorder. Instead, the evidence
insinuates that the veteran's employment has been affected by
his care of his wife and his age.
Thus, it is the conclusion of the Board that the current 10
percent disability rating for an anxiety reaction is
appropriate, and that a disability rating is excess of 10
percent is not warranted. 38 C.F.R. § 4.7 (2005). He does
not exhibit occupational and social impairment with an
occasional reduction in work efficiency or with an inability
to perform daily tasks. He does not suffer from consistent
and chronic suspiciousness, panic attacks, chronic sleep
impairment, or mild memory loss. Additionally, there is no
evidence indicating that the veteran has difficulty with
establishing and maintaining social relationships. The
evidence just does not show that the criteria for a
disability rating in excess of 10 percent have been met.
Finally, to accord justice in an exceptional case where the
schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Chief Benefits
Director or the Director, Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment. 38 C.F.R. §
3.321(b)(1) (2005). The criterion for such an award is a
finding that the case presents an exceptional or unusual
disability picture with related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical application of
regular schedular standards. The Court has held that the
Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2005) in
the first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. §3.321(b)(1) (2005) only where circumstances
are presented which the Director of VA's Compensation and
Pension Service might consider exceptional or unusual.
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In this case, the evidence of record does not indicate the
veteran is frequently hospitalized for his anxiety reaction
and there is no indication that it causes a marked
interference with employment. Having reviewed the record
with these mandates in mind, the Board finds no basis for
further action. VAOPGCPREC 6-96 (1996).
The Board has considered the applicability of the benefit-of-
the-doubt doctrine. However, as there was no approximate
balance of positive and negative evidence of record,
reasonable doubt could not be resolved in the veteran's
favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an increased evaluation for an anxiety
reaction (formerly evaluated as neurasthenia) is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs